It was too good to be true for Sam Alito. Despite his staunch conservatism there was little ammunition to be used against him until the Washington Times released his 20-year-old application this week to become deputy assistant to the attorney general during the Reagan administration.

In the application he wrote about how he helped "to advance legal positions in which I personally believe very strongly." He continued, "I am particularly proud of my contributions in recent cases in which the government argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

Sure enough, ranking Democratic Senator Joe Biden told Fox News Sunday the filibuster is still on the table and is now more likely to be used than it was last week.

"I think he's got a lot of explaining to do, and depending on how he does, I think will determine whether or not he has a problem or not."

But the Democrats would be taking a major risk if they tried to filibuster Sam Alito. As the 2nd nominee to replace retiring Justice Sandra Day O'Connor, the Bush administration cannot afford to find a third. Alito must be confirmed, so any talks of a filibuster would rear the dreaded Nuclear Option, in which filibustering judicial nominees would be made illegal.

Such the case would allow President Bush to nominate anyone - anyone - should a third vacancy open up. Without the filibuster President Bush would be all clear to nominate previously filibustered judges like Janice Rogers Brown, Priscilla Owen and Richard Pryor.